The news that Manhattan prosecutors are not charging FOX 5 anchor Greg Kelly with rape comes after New Yorkers saw two other high-profile rape allegations in the past year disintegrate.
Prosecutors say the dismissal of rape charges against French politician Dominique Strauss-Kahn and the acquittal of ex-NYPD officers Kenneth Moreno and Franklin Mata, who were both charged with rape, illustrate the difficulties of investigating and prosecuting claims of sexual assault.
“[Rape] cases are really tough,” said former prosecutor Julie Block, who prosecuted rape cases for a year at the Brooklyn district attorney’s office.
A lack of physical evidence, or any outside corroboration of the encounter — a drink receipt, two people seen walking on video — can make cases nearly impossible to prosecute, former Brooklyn prosecutor Michael Weinstock said.
“What you don’t want to do is walk into trial with a he- said/she-said case,” he said. “If you go into trial and all you have is testimonial evidence, all you have is a story, you’re going to lose. That doesn’t reach the criminal burden, which is proof beyond a reasonable doubt.”
Evidence that can really help a case includes injuries or a rape kit, particularly in a case of forcible stranger rape.
Weinstock said the first thing he did while prosecuting rape cases was pull telephone records, to find out if the records matched the victim’s testimony. For example, if a woman said she didn’t speak to her alleged rapist after the attack, he needed to confirm that was true.
Delaying reporting a rape is also one of the main things that can severely hamper a case, said prosecutors.
“If someone was saying this happened six months ago, that’s problematic,” Weinstock said. “What happened in the last six months?”
Attorney Paul Callan added that juries are suspicious of delayed reports. “The jury thinks if you were raped, you would report it to the police right away,” he said.
Another challenge is alcohol, legal experts said. In a case where a woman might be out on a date and later tells police she drank too much to consent to sex, it can be very difficult to show one party clearly took advantage of another. “How do you prove the amount was excessive, and that the man should have realized she was incapable of consenting?” attorney Paul Callan asked. Prosecutors get receipts from bars, examine video and interview witnesses to see whether people seemed intoxicated.
Burden of proof can be heavy
“There are innocent people who get charged with this crime,” said Callan, of rape. “A charge of rape is devastating against a man. It may alter a man forever, even if the charge is dismissed.”
Kelly thanks supporters
Greg Kelly will be back on the air at “Good Day New York” tomorrow.
“I am thankful that the investigation established what I’ve known all along, that I am innocent of the allegations that were waged against me,” Kelly said in a statement.
He also thanked “Good Day New York” viewers who he said “expressed positive support through social media,” and said, “I am so blessed to have a wonderful family and friends whose support for me never wavered.”
Follow Alison Bowen on Twitter @alisonatmetro